Federal Rules of Civil Procedure (FRCP) - Rule 11 and Judicial Precedent

Judicial Precedent

• The ratio decidendi must differ, as understood in the case Miller v Jackson of the Court of Appeal.
• The jurisdiction delivering the decision:
  • House of Lords (until 2009) / Supreme Court today
  • Court of Appeal (only one in UK) – self-binding with three exceptions
  • High Court – no self-binding

Authority of Precedent

• Vertical proceedings in common law: more complicated with self-binding precedent
• Vertical precedent: High Court is bound by the judgment of Appeal; Court of Appeal is bound to the judgments of the Supreme Court (not those of the High Court)
• Divisional Court: a formation of the High Court with at least two judges involved in judicial review proceedings – bound by the Court of Appeal
• High Court has persuasive authority: usually followed

Self-Binding Precedent

• Court of Appeal is bound by its own judgments, but with three exceptions:
  • Confronted with two previous decisions that contradict each other
  • Per incuriam judgment: a judgment deliberated by the Court of Appeal that was taken carelessly
  • Previous decision has been overruled

Declaratory Theory of Law

• Concerns the self-binding precedent of the Supreme Court
• States that it is impossible to overrule itself – the judge can't make law, the judge only declares the existing state of law

Rule of Precedent in the US

• Debate about the adoption of the Common Law in the US is still not 100% settled
• Concerns about using precedents, even in the impeachment trial of Trump
• Example of second impeachment trial of Trump: can we institute impeachment proceedings against an officer of the state who's no longer in office?

Judicial Precedent in the US

• Major concerns about precedent after SCOTUS's 2022 term (Dobbs v. Jackson)
• According to Justice Alito, Roe v. Wade "was wrong from the start. Its reasoning was exceptionally weak, and the decision had damaging consequences."
• Rule 11 of the FRCP: stops litigation abuse by making sure legal papers are fair

Foundation of Judicial Precedent

• Based on the stare decisis: stand by the decision / let the decision stand
• The term "judicial precedent" has two meanings:
  • The process whereby judges follow previously decided cases
  • Reference to the decided case itself - a precedent which may be relied on in the future

Precedent in English Law

• Two parameters affect the nature of the rule of precedent:
  • Varying scope with respect to content
  • Varying scope with respect to jurisdiction
• Application: Miller v. Jackson – sometimes it can become complicated
• Focus on the content of the decision:
  • Ratio decidendi: the principle of law on which a decision is based
  • Obiter dictum (dicta): literally "something said by the way"